HomeMy WebLinkAbout2007-2956.Flynn.09-07-03 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB#2007-2956
UNION#2007-0430-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Flynn)
Union
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
BEFOREVice-Chair
Nimal Dissanayake
FOR THE UNION
John Brewin
Ryder Wright Blair & Holmes LLP
Barristers & Solicitors
FOR THE EMPLOYER
Omar Shahab
Ministry of Government Services
Counsel
HEARING
June 18, 2009.
2
Decision
[1]The grievor, Mr. Kim Flynn, filed a grievance dated December 12, 2007 alleging
that the employer violated the collective agreement and the Occupational Health and
Safety Act by failing to make reasonable provisions for a healthy and safe workplace.
[2] The employer has taken the position that the grievance is inarbitrable on two
grounds. First, that the grievance was filed outside the mandatory time limits set out in
the collective agreement, and second, that the subject matter of the grievance has been
settled by minutes resolving previous grievances filed by the grievor, and/or disposed of
by a decision of the Grievance Settlement Board.
[3] This matter was scheduled for mediation-arbitration. Following discussion between
counsel, the parties agreed to make submissions and obtain a ruling on the employer?s
objections to the arbitrability of the grievance.
[4] The parties agreed that, for the purposes of this preliminary decision only, I should
accept the factual assertions by the union as true, and determine whether even on that
basis, there is any possibility that the grievance will be found to be arbitrable. The parties
agreed that if I find that the grievance is inarbitrable even on the union?s best case, the
grievance should be dismissed. On the other hand, if I conclude that the grievance may
be arbitrable if the union is able to establish the facts asserted, I would then permit the
parties to lead evidence pertinent to the preliminary objections, and to make further
submissions, before finally determining the arbitrability of the grievance.
[5] I agreed to the foregoing process jointly proposed by the parties, although it is an
unusual way of proceeding, where essentially the Board is undertaking to rule whether
there is a prima facie case for arbitrability. The parties, in their opening statements, were
of the common opinion that the hearing on the merits of the grievance would be
protracted and complex. I was convinced by the parties that in the circumstances, the
proposed procedure was logical, practical, and efficient.
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[6] As per agreement of the parties, I have relied on the following sources for the
relevant facts. I have accepted as true, the facts asserted by the union in a document it
prepared under the hearing ?Union Case Summary?, a ?proposed partial Agreed
Statement of Facts?, the oral presentations by counsel, and an unsworn oral deposition
made before me by the grievor. In addition, I have relied on documentary evidence
tendered on consent.
[7] The gist of the grievance is to the effect that through its actions and/or inactions the
employer has caused or contributed to the grievor?s illnesses, i.e. alcohol abuse and major
depression. The union acknowledged that the most recent employer conduct relied upon,
the issuing of a letter of discipline dated July 27, 2005, occurred approximately 2½ years
prior to the filing of the grievance, and that, therefore, the grievance was filed well
beyond the time-limits set out in article 22.2.1. However, union counsel submitted that
the Board ought to exercise its discretion under s. 48(16) of the Labour Relations Act to
extent the time-limits, taking into account the grievor?s particular circumstances.
[8] Union counsel submitted that as a general rule, the union supports the Board?s
jurisprudence to the effect that a party will not be allowed to relitigate grievances settled.
However, he contended that the Board has retained some flexibility, in that it balances the
sanctity of settlements, with the need for fairness in the particular circumstances. He
argued that while there had been settlements of prior grievances involving the same
employer conduct as in this grievance, none of those previous grievances involved the
allegation that the grievor?s illness was related to the employer?s conduct. The instant
grievance was filed when the grievor realized for the first time that the employer had
caused or contributed to his illness, by failing to make reasonable provision in the
workplace for his health and safety.
Timeliness
[9] The alleged employer conduct, which the union relies on to support the instant
grievance, may be briefly summarized as follows:
-1983: The grievor?s probation period was longer than his co-workers and no
explanation was provided for this.
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-October 1999 and January 2000: A supervisor belittled the grievor by making
accusations and yelling at him in the presence of co-workers, resulting in the
grievor feeling embarrassed and humiliated.
-The grievor was passed over for many health and safety positions, some of
which were awarded to family and friends of the managers. These allegations
go back to 1992, 1996, 2002 and 2003.
-Despite the grievor?s expression of interest, a number of positions were filled
without competition. Some managers appointed friends and relatives to
positions without running a formal competition. These allegations relate back
to 1999, 2000 and 2003.
-The grievor missed work on numerous days due to his depression and alcohol
abuse. Even though the grievor submitted doctor?s notes, his pay was
suspended for many of these absences. In some cases, he was disciplined also.
These events occurred in 2005.
[10] Union counsel stated that the evidence will establish the following. The grievor
commenced employment with the employer on September 30, 1983. He has suffered
from alcohol abuse and major depression at least from 2000. By June 2005, the illness
was so severe that the grievor went off sick and has not returned to work to date. He has
been in receipt of LTIP benefits since January 2006.
[11] From 2005 the grievor has been under the care of Dr. A. Singh, a psychiatrist. In
March 2009 counsel spoke with Dr. Singh in preparation for arbitration. Dr. Singh
confirmed that he has been treating the grievor for alcohol abuse and major depression
since 2005. He advised counsel that he was not able to opine as to whether there was a
causal connection between the grievor?s workplace experiences and his illness until he
receives more information, particularly about the workplace stressors the grievor may
have had. However, he did opine that individuals subject to alcohol abuse are generally
more sensitive to workplace stressors. Dr. Singh informed counsel that in 2005 the
grievor was in a bad and deteriorating condition with alcohol abuse and major depression,
and that it continued to get worse until 2007. However, at some point in 2007, his health
turned around with treatment, and the grievor continued to improve through 2008 and
into 2009.
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[12] According to counsel, it was Dr. Singh?s opinion that an individual suffering from
alcohol abuse and major depression ?is not necessarily in a position to seriously assess
his future at the workplace,? and that the grievor may not have appreciated at the time,
the need to file a grievance in a timely manner. Dr. Singh was unable to opine as to
when the grievor may have first become capable of appreciating that requirement.
[13] The grievor?s deposition included the information that he did not even realize that
he had an alcoholism issue until 2005, even though he had been abusing alcohol since
2000. When he realized that, he sought professional help. He stated that he has been
?alcohol free? since November, 2005. According to him, it was only sometime in 2007
that he began to understand the nature of his illness, and realized that ?the workplace had
been a major contributing factor.?
[14] S. 48(16) of the Labour Relations Act provides;
48(16) Except where a collective agreement states that this subsection does
not apply, an arbitrator or arbitration board may extend the time for the
taking of any step in the grievance procedure under a collective agreement,
despite the expiration of the time, where the arbitrator or arbitration board is
satisfied that there are reasonable grounds for the extension and that the
opposite party will not be substantially prejudiced by the extension.
nd
[15] In Re Becker Milk, (1978) 19 L.A.C. (2) 217 (Burkett) at pp. 220-221, the
arbitrator discussed the considerations involved in deciding whether to extend time-limits
under S. 48(16), as follows:
The exercise of the equitable discretion vested in an arbitrator under s.
37(5a) [now 48(16)] of the Act requires a consideration of at least three
factors. These are: (i) the reason for the delay given by the offending party;
(ii) the length of the delay; (iii) the nature of the grievance. If the offending
party satisfies an arbitrator, notwithstanding the delay, that it acted with due
diligence, then if there has been no prejudice the arbitrator should exercise
his discretion in favour of extending the time-limits. If however, the
offending party has been negligent or is otherwise to blame for the delay,
either in whole or in part, the arbitrator must nevertheless consider the
second and third factors referred to above in deciding if reasonable grounds
exist for an extension of the time-limits.
[16] S. 48(16) requires that the arbitrator be satisfied that there are ?reasonable grounds
for the extension? of time-limits, and that the opposite party will not be substantially
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prejudiced by the extension. The existence of reasonable grounds cannot be determined
in isolation. It must include a consideration of a range of factors depending on the facts
of the particular case. It involves a balancing of the interests of the two parties, one of
which is the potential prejudice. Thus, at p. 221, arbitrator Burkett wrote:
The term ?reasonable grounds for the extension? ? is not synonymous with
the reasonableness of the excuse advanced by the offending party. Having
regard to the purpose of the section the term carries a broader signification
which requires the arbitrator to weigh a number of factors, including but not
necessarily restricted to those which have been set out above.
[17] Some of the factors commonly considered by arbitrators were set out by arbitrator
Re Greater Niagara General Hospital, (1981) 1 L.A.C. (3d) 1, as follows:
Schiff in
1. The nature of the grievance
2. Whether the delay occurred in initially launching the grievance or at some
later stage.
3. Whether the grievor was responsible for the delay.
4. The reasons for the delay.
5. The length of the delay.
6. Whether the employer could reasonably have assumed the grievance had
been abandoned.
The foregoing list was not intended to be exhaustive. In each case, there may be peculiar
circumstances, which may have a bearing on whether reasonable grounds for extension
exist.
[18] Based on the very limited factual information put before me, I cannot conclude with
certainty that there is no possibility that reasonable grounds may be found to exist for
extension of time limits. There is simply not enough information to enable me to do the
weighing and balancing required. Therefore, I have determined that I need to receive
more evidence and submissions on the issue.
[19] The thrust of the union?s position is to the effect that due to the very nature of the
illnesses the grievor suffered at the time, he was not capable of making rationale
decisions about the requirements of filing a grievance in a timely manner. Assuming that
the union establishes the grievor?s incapacity in that regard, particularly if there is
medical evidence to that effect, that will be a reasonable excuse for the delay. However,
that is not dispositive of the issue of extension of time limits. As arbitrator Burkett
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observed in Re Becker Milk (supra), ?reasonable grounds for extension? is not
synonymous with the reasonableness of the excuse advanced. That would be only one,
albeit a very significant one, of the factors to be considered. All of the factors must be
considered as a whole before a decision can be made on extension of time limits. I have
no information to enable such an exercise. For example, the union has relied on alleged
employer conduct over a long period starting back in the early 1990s. Union counsel
appeared to anticipate that the employer may argue prejudice, when he stated that the
union may decide not to go that far back. However, that has not yet been determined.
Even the employer has not had the opportunity to assess what exact allegations are being
made against it, and whether it will be prejudiced in defending against them due to the
passage of time.
Is the Grievance Settlement Barred/Res Judicata?
[20] The proposed partial Agreed Statement of Facts? includes a ?Chronology of past
Grievances? filed by the grievor. These past grievances cover the period August 1992 to
December 2005. For the present purposes, the grievances and their disposition may be
very roughly set out as follows:
-Grievance dated August 7, 1992 related to a job competition and failure to provide
equal opportunity for training.
Disposition: Denied at stage 2, referred to arbitration, hearing date adjourned and
not pursued again.
-Grievance dated October 6, 1992 alleging that the employer attempted to restrict,
restrain and intimidate the grievor by attempting to interfere with the administration
of the employee organization.
Disposition: Denied at stage 2 and not referred to arbitration.
-Grievance dated February 23, 2000 alleging a violation of the health and safety
provision of the collective agreement as a result of a supervisor chastising the
grievor in a loud and rough manner in front of other staff.
Disposition: Full and final Memorandum of Settlement dated February 23, 2000
entered into without precedent and prejudice.
-Two Grievances dated October 15, 2003, each alleging unreasonable denial of
developmental opportunities.
Disposition: Both grievances resolved by a full and final and without precedent and
prejudice memorandum of Settlement dated May 31, 2005.
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-Group grievance dated May 17, 2004 and individual grievance dated April 15,
2004, alleging a violation of, inter alia, the health and safety provisions of the
collective agreement as a result of the employers practice relating to assignment of
work.
Disposition: Both grievances resolved by a full and final without precedent or
prejudice Memorandum of Settlement dated May 31, 2005.
-Grievance dated May 17, 2004, alleging that the employer?s method or reporting
and retaining information on credits is misleading and inaccurate.
Disposition: Settled by full and final without precedent or prejudice Memorandum
of Settlement dated December 1, 2004.
-Two Grievances dated December 1, 2005 alleging unreasonable, vexatious and
harassing actions, in violation of, inter alia, the health and safety provision.
Disposition: Resolved by way of a full and final without precedent or
prejudice Memorandum of Settlement dated December 14, 2005.
-Grievance dated October 6, 2002 alleging denial of equal access to overtime and
training opportunities.
Disposition: Grievance dismissed by Board decision dated August 22, 2008 for
failure to comply with time lines for filing of written submissions set by the Board.
[21] Based on the foregoing facts, it is the employer?s position that there is considerable
overlap between the employer conduct alleged in the instant grievance and those raised
in the past grievances. Thus, it is submitted that the union should not be allowed to in
effect relitigate those same matters.
[22] While the union subscribes to the general, principle that terms of settlement are
sacrosanct, it seeks an exception to that principle in the particular circumstances. The
thrust of its argument is to the effect that due to the very nature of the grievor?s illness,
alcohol abuse and major depression, the grievor did not have the capacity to understand
the connection between the workplace stressors and his illness. He realized the
connection only when his health improved in 2007, and he grieved at that time. When
the grievor settled his past grievances, he was only concerned with the particular
employer conduct grieved, and had no realization that the same employer conduct had
contributed to or caused his illness. Counsel stressed that none of the past grievances
raised the issue raised in the present grievance, namely that the employer was
responsible, in whole or in part, for the grievor?s alcoholism and depression.
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[23] In addition, the deposition of facts by the grievor raises a possible ?economic
duress? argument, at least with regard to one of the settlements, in that he stated that he
was in such dire financial difficulties at the time that he was prepared to settle for any
monetary offer.
[24] As with the union?s position relating to the motion on timeliness, its contention in
support of re-opening settlements focuses to a large extent on the grievor?s mental
condition at the time of the settlements. That is, that due to his illness, he did not
appreciate the cumulative impact of the employer conduct on his health. The veracity of
that argument will depend significantly on medical evidence.
[25] In Zubovits v. Ontario (Human Rights Commission), [2007] O.J. No. 4421; 161
A.C.W.S. (3d0 951 (Ont. Div. Ct.) at para. 30, Swinton J. made the following
observation:
The applicant alleges that disability played a role in his agreement to the
settlement. However, there is no medical or other evidence in the material
put before the Commission to show the nature and extent of his alleged
mental disability and the specific impact it had on his ability to enter into the
settlement agreement. In contrast, in the Brine case on which he relies, the
complainant had put forward information about his vulnerable mental
condition at the time of a settlement, including reports from medical experts
about his condition (Brine v. Canada Attorney General), [1999] F.C.J. No.
1439 (T.D.)). Here, the applicant alleges a mental disability without any
explanation of any impairment caused by that disability that negatively
affected his ability to negotiate and agree to a settlement.
Re Rolfe, 2003-2769 (Briggs), the grievor had asserted that because of her stress
[26] In
and anxiety disability coupled with the anti-depressant medication she was taking, she
was not able to comprehend the employer?s offer she had agreed to. In not allowing the
grievor to resile from the agreement, at p. 15 the Board noted that her assertion was
supported by ?too little evidence in this regard, and none of it medical?.
[27] The implication in those decisions is that, if medical evidence establishes that a
mental condition affected an individual?s ability to rationally consider a settlement offer,
he may not be held strictly to the terms agreed to. At this point I am not in a position to
rule with certainty that the union would not be able to make a convincing case for
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proceeding with this grievance, in whole or to a limited degree, despite the prior
settlements. It may well be able to do so, if there is sufficient medical evidence to
support its assertions as to the grievor?s state of mental health at the time he entered into
the past settlements. It is only after I receive the full evidence and submissions that I will
be in a position to make an informed decision as to arbitrability.
Summary
[28] Particularly considering the extreme staleness of some of the events relied upon by
the union, the union faces a significant hurdle in convincing the Board to extend time-
limits. Nevertheless, I am not prepared at this time to rule that the hurdle is
insurmountable. If the union is able to survive the objection based on timeliness, its
chances of convincing the Board that it should be allowed to litigate this grievance
despite the past settlements and decision depend largely on medical evidence. I trust that
the observations herein will assist the parties in making decisions on how to proceed with
the grievance.
[29] I remain seized with the instant grievance.
rd
Dated at Toronto this 3 day of July 2009.
Nimal Dissanayake, Vice-Chair